Altitude Express, Inc., is turning to the Supreme Court for review of an en banc divided Second Circuit opinion which, upending its own precedent, held that Title VII prohibits sexual orientation discrimination—in this case, against a skydiving instructor who was allegedly fired because he was gay. The termination followed a complaint by a customer’s boyfriend that the instructor had touched the woman inappropriately and told her he was gay to excuse it.

Sign of the times. In addition to courts being split on the Title VII issue it raised, Zarda v. Altitude Express was notable because in amicus briefs, the EEOC and DOJ took opposing views. The DOJ argued that Title VII does not prohibit sexual orientation discrimination. But the EEOC’s brief, noting that it is the “primary agency” charged with interpreting Title VII, argued that sexual orientation discrimination claims “necessarily involve impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping,” so they fall “squarely within Title VII’s prohibition against discrimination on the basis of sex.”

Employer wins, then loses. After the employee sued over his termination, the district court found he had enough evidence to support his state-law claim for sexual orientation discrimination, but he failed to show he was discriminated against based on his sex for purposes of his Title VII claim, which failed on summary judgment. A Second Circuit panel affirmed, refusing to revisit Second Circuit precedent upon which the lower court’s ruling relied, explaining that it could only be overturned by the appeals court sitting en banc.

Doing exactly that, the full Second Circuit (13 judges) reversed its precedent and held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” Chief Judge Katzmann wrote the opinion, with Judges Jacobs, Sack, Lohier, and Cabranes writing concurring opinions, while Judges Lynch and Livingston dissented.

Among other things, the appeals court found that the most natural reading of Title VII’s prohibition on discrimination “because of … sex” is that it extends to sexual orientation—because sex is necessarily a factor in sexual orientation. For example, amici argued the employee was fired because he is “gay” and not because he is “a man,” but the word choice does not change the fact that a gay employee is a man attracted to men, and the termination was based in part on the employee’s sex. Intent matters, not semantics.

The court also found support for its conclusion through the lens of gender stereotyping “because sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.”

A petition whose time has come. In its petition for certiorari, Altitude Express argues that the High Court should grant the petition because it “presents a question of heightened significance over which there exists a growing divide amongst the Circuit Courts and provides an ideal vehicle for addressing this question.” While at its core, this is a case of statutory construction, it is also certainly “emblematic of the zeitgeist in American conscience and law respecting gender and sex,” the employer contends. The case demonstrates the nation’s “ever evolving attitudes toward the civil rights of gay, lesbian, and bisexual individuals,” according to the petition.

Policy versus law. “Perhaps it was with an attuned sensitivity to these developments that the Second Circuit, joining the Seventh and the EEOC, departed from more than fifty (50) years of established precedent in reaching the conclusion that sexual orientation is among the enumerated classes of individuals protected by Title VII as a subset of ‘sex’ discrimination,” the petition opined.

While that end may be laudable, the employer questioned the means deployed by the Second Circuit, saying those means “circumvent the immutable legislative process by which we remain bound to govern.”

“As citizens and a nation, we can strive for the level of inclusion reached by the Second Circuit,” according to the petition. “However, this cannot be achieved at the expense of compromising our democratic process. The Constitution establishes a procedure for enacting and amending statutes: bicameralism and presentment. … Statutory emendation by the judiciary cannot be reconciled with this construct.”

The real question here. The petition underscored that the question it brings to the Justices “is not whether, as a matter of policy, sexual orientation discrimination should be prohibited by statute, regulation, or employer action,” but rather “whether, as a matter of law, Title VII encompasses sexual orientation.”

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